Stop Making Scents?

By: Charles Cronin and Claire Guillemin

The French judicial system has a greater tolerance for insubordination among its constituent courts than that of the United States. Indeed, since the Cour de Cassation’s 2006 ruling, courts inferior to it have blithely issued decisions holding that copyright may apply to fragrances, even after the highest court in France decided it could not. Perhaps this judicial insolence was encouraged not only by a generally pro-copyright ethos in France, but also by the fact that only days after the Cour de Cassation decision the highest court in the Netherlands ruled that copyright did protect fragrances.

Latest Copyright Challenges

This state of ambiguity and judicial disorder was again brought to a head last December when the Cour de Cassation, once again adjudicating a claim initiated by Lancôme (L’Oréal) involving Trésor, issued a fourth ruling reiterating its position that fragrances were not eligible for copyright protection. The basis of the court’s decision was its finding that fragrances cannot be accurately and consistently described by those perceiving them. In other words—as one might extrapolate from this decision—unlike a Harry Potter story that may be consistently recounted by readers of all ages everywhere, Trésor or Calèche will manifest only wildly divergent and generalized descriptions by those who perceive these perfumes. Accordingly, given humans’ limited scent perception, the law must not protect fragrances as copyrightable works of expression because doing so risks providing the creator of a particular fragrance a monopoly over an entire family of fragrances—citrus, fougère, floral, etc.

Notable, however, in the Cour de Cassation’s decision is the fact that it retreated slightly from the court’s earlier view of fragrances themselves—i.e., the “olfactory forms”—as merely works of technical know-how. Its decision acknowledged that the creation of a fragrance might involve creative intellectual effort like that required to produce a literary work. Nevertheless, fragrances are not sufficiently perceptible and therefore cannot be effectively communicated to the public in the manner of a musical or literary work. Because fragrances cannot communicate specific information they cannot be protected by copyright.

The Cour de Cassation decision last December was disappointing to Lancôme, of course, but also to a cadre of avant garde perfumers in Europe and the United States. This new contingent of perfumers, who regard themselves as creators and artists, rather than artisans—like cooks or hairdressers—had hoped for a decision that would unequivocally establish fragrance’s eligibility as a class of protectable authorial expression. This legal recognition would finally signal perfumers’ capacity for original artistic creations, like that of novelists, composers and film directors. The uncertain economic consequences of the realization of such hopes, however, likely informed the Cour de Cassation decision once again to shut the Pandora’s Box of copyright protection in this context.

What Next?

Given the qualms expressed by the French high court as to extending copyright protection to fragrances, it seems unlikely that copyright will ever become a new means of protecting original fragrances in France. Some would argue, however, that, paradoxically, this augurs well for innovation in the fragrance industry. If a popular new fragrance, like a new clothing design or culinary innovation, can be legally imitated and marketed by those other than the creator of the fragrance, these imitations will swiftly saturate the market and exhaust interest in the new fragrance. This exhaustion, in turn, will goad perfumers to create new fragrances—just as couturiers create new fashions every season—that may become popular and profitable in part because they signify a departure from previously popular scents, the residual profits of which are being chased by imitators. Under these circumstances imitation may be not only the “sincerest form of flattery” but also the strongest incentive to innovation. In the United States, for instance, where the sale of “smell-alike” fragrances is generally regarded as legally permissible, the rampant production of such knock-offs has not stymied creativity; arguably, it has, in fact, promoted it.

Meanwhile, perfumers, fragrance houses and industry clients might be well advised not to discount the efficacy of trade secrets and unfair competition to protect their know-how and intellectual property. These more traditional means of legal protection do not provide their owners exclusive privileges (as do patents, trademarks and copyrights) but they are increasingly the focus of legislators in Europe and the United States, who are seeking to harmonize and strengthen the protection of these legal mechanisms to adapt them to realities of the global market—e.g., widespread reverse engineering, stringent transparency requirements and itinerant employees. On a more fundamental level, individual members of the fragrance industry might regularly audit their IP assets and ultimately collaborate among themselves to develop an industry-wide code of conduct that might offer protection for formulas and know-how beyond that now available under intellectual property law.

Charles Cronin is a lecturer in law at the University of Southern California Law School, and Claire Guillemin is a fragrance industry IP expert.